Suthers Opinion Sets Up Showdown With Metro State Over Illegal Alien Tuition Discount

SUTHERS: Colorado’s state-supported higher-education institutions cannot create discounted tuition categories for students who are unable to prove their lawful presence in the United States

DENVER—Metropolitan State College of Denver overstepped its authority by agreeing to offer a discounted tuition rate for illegal alien students, according to an opinion released by Attorney General John Suthers on Tuesday.

Suthers said only the Colorado General Assembly has the legal authority to create discounted student categories, not public colleges like Metro State, whose governing board approved a special rate for illegal aliens earlier this month.

“After carefully reviewing the state and federal law in this area, my office has concluded that Colorado’s state-supported higher-education institutions cannot create discounted tuition categories for students who are unable to prove their lawful presence in the United States,” said Suthers in the formal opinion. “Although federal law allows state legislatures to pass statutes affirmatively providing tuition benefits to undocumented students, the General Assembly has repeatedly declined to legislate in this area.”

The state legislature has killed a half-dozen bills that would establish discounted tuition rates for illegal alien students who graduate from Colorado high schools. The most recent such legislation, known as the ASSET bill, died in the 2012 legislative session after it was voted down by the House Finance committee.

Suthers’ opinion came in response to a query about the policy’s legality from the Colorado Community College System. The Metro State Board of Trustees voted 7-1 to approve the discounted illegal alien tuition rate for the 2012-13 academic year at its June 7 meeting.

Suthers, a Republican, also chided the board for failing to contact his office before voting on the tuition policy, saying, “I am disappointed Metro State decided to proceed in this manner without consulting our office.”

Metro State trustees challenged Suthers’ opinion Tuesday, pointing out that the board has the authority to set tuition rates for non-resident students without the legislature’s approval, as long as those rates contain no state subsidy.

“It was the Board of Trustees and Metro State’s administration intent to enhance our role and mission and provide access and affordability to all of Colorado’s high school students,” said the Metro State board in a statement. “It was never our intent to disregard Colorado’s law or its legislature, and we do not believe we have done this.”

Suthers argued that the tuition discount represents a “public benefit,” which “under the current state law may only be provided to individuals who prove their lawful presence in the United States.”

The Metro State decision was cheered by amnesty advocates, but its legality was questioned by some state legislators. Ten Republicans sent a letter to Democratic Gov. John Hickenlooper asking him to intervene and place the trustees’ decision on “indefinite hold pending legislative approval.”

Metro State had planned to charge full-time illegal alien students $3,358.30 per semester, which is 150% of the in-state full-time tuition rate of $2,152.20. The tuition rate for out-of-state students who are legal U.S. citizens is $7,992.60 per semester.

Suthers’ opinion is non-binding, and speculation was rife that Metro State will challenge his opinion in court. At the same time, the attorney general’s opinion is likely to discourage other state universities from following Metro’s lead pending further legal challenges.

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